Citation Nr: 0121058
Decision Date: 08/17/01 Archive Date: 08/27/01
DOCKET NO. 93-22 473 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUES
1. Entitlement to service connection for a right knee
disability.
2. Entitlement to an increased disability evaluation for post
traumatic stress disorder (PTSD) currently evaluated as 70
percent disabling.
REPRESENTATION
Appellant represented by: Kenneth M. Carpenter, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and his brother-in-law
ATTORNEY FOR THE BOARD
J. W. Engle, Counsel
INTRODUCTION
The veteran had periods of active duty for training from
February 1962 to August 1962 and from June 9 to June 23,
1963. He served on active duty from July 9, 1963 to July 5,
1966, and from November 1990 to June 1991. The veteran also
had a period of active service from July 6, 1966 to October
26, 1967, under dishonorable conditions for VA purposes. See
VA Administrative Decision dated March 1979. In addition,
the record reflects he had more than 19 years of inactive
duty.
Initially, the Board notes that in April 1992, the RO, among
other things, denied entitlement to service connection for a
right knee disability. In August 1992, the veteran submitted
a statement indicating that he was seeking service connection
for a bilateral knee injury which he sustained during service
in Vietnam. Although this statement adequately expressed
disagreement such to serve as a notice of disagreement with
the RO's April 1992 denial of his claim for service
connection for a right knee disability, no action was taken
on this claim. In September 1995, the Board noted the above
circumstances and directed the RO to issue the veteran a
statement of the case addressing his claim for service
connection for a right knee disability. Pursuant to the
Board's direction, in September 1997 the RO issued a
statement of the case to the veteran and his representative.
In January 1998, the veteran's representative indicated that
while he received a cover letter for the September 1997
statement of the case, the statement of the case was not
attached thereto as indicated. It was requested that the RO
issue a statement of the case in order for the veteran to
submit a timely substantive appeal on this issue. In April
1998, the veteran submitted a statement which he indicated
was his substantive appeal regarding his claim for service
connection for a right knee disability. It was noted that he
had received the statement of the case dated September 11,
1997 on February 26, 1998 and that since this statement was
submitted to the RO within sixty days of his receipt of the
re-issued statement of the case, it should serve as a timely
substantive appeal for the claim for service connection for a
right knee disability. The Board has carefully reviewed the
record in light of the veteran's assertions and in the
absence of evidence to the contrary, concludes that appellate
jurisdiction has been established for the issue of
entitlement to service connection for a right knee
disability.
With respect to the claim for an increased evaluation for
PTSD, the Board notes that in October 1992, the RO increased
the rating for the veteran's PTSD to 70 percent effective
from November 21, 1991. In November 1992, the veteran
submitted a notice of disagreement with the 70 percent rating
and in May 1993, a statement of the case was issued. In July
1993, the veteran perfected his appeal with regard to the
issue of entitlement to a rating in excess of 70 percent for
PTSD. The Board remanded the issue to the RO in September
1995 and again in March 1998 for additional development to
include VA psychiatric examinations. The requested
development has been completed to the extent possible and
this issue has been returned for appellate review.
In addition, the Board notes that issues of entitlement to an
increased disability rating for a left knee disability and
for a total disability evaluation for compensation based upon
individual unemployability are the subject of the remand
immediately following this decision.
FINDINGS OF FACT
1. The service medical records reflect no evidence of a right
knee disability during the veteran's periods of active
duty.
2. In November 1991, approximately five months after
discharge from active duty in the Persian Gulf, the
veteran was diagnosed with post traumatic degenerative
joint disease and underwent arthroscopic debridement of
the right knee.
3. The record is unclear as to the level of right knee
disability present within the initial post-service year;
however, the proximity of the diagnosis and surgery to
service discharge provides a sufficient basis to relate
the arthritis to service.
4. The Board has considered both the pre-November 1996 and
the post-November 1996 rating criteria in adjudicating the
veteran's claim for an increased disability evaluation for
PTSD.
5. Prior to November 1996, the veteran's PTSD has not been
shown to have been manifested by virtual isolation in the
community, totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes associated with almost all
daily activities such as fantasy, confusion, panic and
explosions of aggressive energy resulting in profound
retreat from mature behavior, or that he was demonstrably
unable to obtain or retain employment due solely to PTSD.
6. The veteran's PTSD thereafter has not been shown to be
productive of total occupational and social impairment,
due to such symptoms as: gross impairment in thought
processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability
to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation
to time or place; memory loss for names of close
relatives, own occupation, or own name.
CONCLUSIONS OF LAW
1. A right knee disability was incurred during active duty.
38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 1991 & Supp.
2000); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2000).
2. The criteria for a disability evaluation in excess of 70
percent for PTSD are not met. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code
9411 (1996 & 2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000), which contains revised notice provisions, and
additional requirements pertaining to VA's duty to assist.
See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, §§ 3-4, 114 Stat. 2096, 2096-2099 (2000) (to be codified
as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). The
new law applies to all claims filed on or after the date of
the law's enactment, as well as to claims filed before the
date of the law's enactment, and not yet finally adjudicated
as of that date. See Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-
2100 (2000); VAOPGCPREC 11-2000 (2000).
In this case, the RO has not yet had an opportunity to
consider the claim on appeal in light of the above-noted
change in the law. Nonetheless, the Board determines that
the law does not preclude the Board from proceeding to an
adjudication of the veteran's claims for service connection
for a right knee disability and for an increased rating for
PTSD without first remanding the claim to the RO, as the
requirements of the new law have essentially been satisfied.
In this regard, the Board notes that by virtue of the May
1993 statement of the case, and the September 1997 and
January 2000 supplemental statements of the case addressing
the increased rating claim for PTSD and the September 1997
statement of the case addressing the issue of service
connection for a right knee disability, the veteran and his
representative have been advised of the laws and regulations
governing these claims, and been given notice of the
information, medical evidence, and/or lay evidence necessary
to substantiate these claims. Moreover, VA has conducted
reasonable efforts to assist him in obtaining evidence
necessary to substantiate his claims primarily by requesting
medical records from the treatment providers indicated by the
veteran as well as obtaining additional medical evidence
including VA examinations by remand in September 1995 and
again in March 1998. In fact, it appears that all evidence
identified by the veteran relative to these claims has been
obtained and associated with the claims file. Also, the
veteran was afforded the opportunity to offer testimony
before a Hearing Officer at the RO regarding the issue of an
increased rating for PTSD. Hence, adjudication of this
appeal, without remand to the RO for initial consideration
under the new law, poses no risk of prejudice to the veteran.
See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
I. Service Connection for a Right Knee Disability
The veteran contends, in essence, that he has right knee
disability as a consequence of his service. He argues that
he sustained a right knee injury while serving in Vietnam.
For service connection to be granted, it is required that the
facts, as shown by the evidence, establish that a particular
injury or disease resulting in chronic disability was
incurred in service, or, if pre-existing service, was
aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303 (2000). Furthermore, with chronic disease shown as
such in service so as to permit a finding of service
connection, subsequent manifestations of the same chronic
disease at any later date, however remote, are service-
connected, unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b) (2000). This rule does not
mean that any manifestation of joint pain, any abnormality of
heart action or heart sounds, any urinary symptoms, or any
cough, etc., in service will permit service connection of
arthritis, disease of the heart, nephritis, or pulmonary
disease, etc., first shown as a clear-cut clinical entity, at
some later date. Idem. For the showing of chronic disease
in service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." Id. (emphasis added).
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. Id. When the fact of chronicity in service is
not adequately supported, then a showing of continuity after
discharge is required to support the claim. Id; See Savage
v. Gober, 10 Vet. App. 488, 495 (1997).
Service connection may also be granted for arthritis if
manifested to a compensable degree within one year from the
date of separation from service. See 38 U.S.C.A. §§ 1112,
1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (2000).
After review of the evidence of record, the Board concludes
that entitlement to service connection for chondromalacia of
the right knee is warranted. Although the veteran's service
medical records for his first period of active duty do not
document a diagnosis of any right knee disability, or
otherwise support the veteran's allegations regarding a right
knee injury during his service in Vietnam, the record does
reflect that in November 1991, approximately five months
after discharge from active duty in the Persian Gulf, the
veteran underwent diagnostic arthroscopy and arthroscopic
debridement of patellar chondromalacia of the right knee.
Furthermore, on orthopedic evaluation in May 1992, apparently
for the purpose of determining his fitness for active duty,
examination of the right knee revealed crepitus through the
range of motion and a positive apprehension sign. X-ray
findings were significant for the presence of an osteophyte
on the underside of the patella.
Additionally, in November 1995, a private physician noted
that he had treated the veteran intermittently for over 10
years and that he had advanced bilateral post traumatic
degenerative joint disease of the knees.
Although the first of these findings are clearly within the
one year presumptive period, the Board notes that the
evidence of record contemporaneous to this time period does
not provide a clear picture as to the level of right knee
disability attributable to the identified arthritis.
However, given the significance of these findings and their
proximity in time to the veteran's period of active duty in
the Persian Gulf, and the absence of any additional evidence
to establish an alternate etiology for the right knee
disability, the Board, through application of the doctrine of
the benefit of the doubt, 38 C.F.R. § 3.102, concludes that
this disability had its onset during the veteran's period of
active duty in the Persian Gulf. Accordingly, entitlement to
service connection for a right knee disability is warranted.
II. Increased Disability Evaluation for PTSD
Initially, the Board notes that during the pendency of this
appeal, the applicable rating criteria for mental disorders,
38 C.F.R. § 4.125 et seq., was amended effective November 7,
1996. See 61 Fed. Reg. 52,695 (October 8, 1996). Pursuant
to VAOPGCPREC 11-97, where a regulation is amended during the
pendency of an appeal to the Board, the Board must first
determine whether the amended regulation is more favorable to
the claimant than the prior regulation, and, if it is, the
Board must apply the more favorable provision. See Dudnick
v. Brown, 9 Vet.App. 397 (1996)(per curiam); Karnas v.
Derwinski, 1 Vet.App. 308 (1991).
The veteran's PTSD is currently evaluated as 70 percent
disabling pursuant to Diagnostic Code 9411. Under the pre-
November 1996 criteria, a 70 percent evaluation contemplated
that the ability to establish and maintain effective or
favorable relationships with people was severely impaired, or
the psychoneurotic symptoms were of such severity and
persistence that there was severe impairment in the ability
to obtain or retain employment. A 100 percent evaluation
required either virtual isolation in the community, totally
incapacitating psychoneurotic symptoms bordering on gross
repudiation of reality with disturbed thought or behavioral
processes associated with almost all daily activities such as
fantasy, confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior, or the
veteran must be demonstrably unable to obtain or retain
employment. 38 C.F.R. Part 4, Diagnostic Code 9411 (1996).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2000).
Under the new criteria, effective November 7, 1996, a 100
percent evaluation requires total occupational and social
impairment, due to such symptoms as: gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name. A 70 percent evaluation is appropriate where there
is occupational and social impairment, with deficiencies in
most areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships. 38 C.F.R. Part 4,
Diagnostic Code 9411 (2000).
Upon review of the record, the Board notes that based upon
the facts in this case, neither the pre-November 1996 nor the
post-November 1996 rating criteria are deemed to be more
favorable to the veteran. Accordingly, the claim has been
considered pursuant to both sets of rating criteria for the
applicable time periods in an effort to ensure due process.
See VAOGCPREC 3-2000.
After careful review of the evidence of record, the Board
concludes that entitlement to an increased disability
evaluation in excess of the current 70 percent rating for
PTSD is not warranted.
In reaching this conclusion, the Board finds that the overall
level of disability attributable to the appellant's service-
connected psychiatric impairment as documented throughout the
record during the appeal period has been shown to be variable
in nature. However, the veteran's PTSD symptomatology
identified prior to November 1996, the date of the change in
the rating criteria, does not reflect that the veteran was
virtually isolated in his community, that there were totally
incapacitating psychoneurotic symptoms bordering on gross
repudiation of reality with disturbed thought or behavioral
processes associated with almost all daily activities such as
fantasy, confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior, or that
he was demonstrably unable to obtain or retain employment due
to his PTSD alone. In fact, the record reflects that during
VA mental health counseling in November 1991, the veteran
reported an increase in his PTSD symptoms since returning
from the Persian Gulf. The VA psychologist noted the
"resurgence" of his PTSD symptoms and indicated that these
symptoms were exacerbated by his physical condition. While
these reports further noted complaints of extreme isolation,
depression and anxiety, there was no evidence of the totally
incapacitating psychoneurotic symptoms characteristic of a
loss of contact with reality or other findings appropriate to
the pre-November 1996 criteria such to support a 100
schedular evaluation. In this regard, on VA psychiatric
examination in May 1992, the examiner noted no evidence of a
thinking disorder or organic brain syndrome, identified no
evidence of delusions or hallucinations, the veteran's affect
was full and appropriate and his memory was found to be
intact for recent and remote events. Furthermore, a report
from a VA clinical psychologist received by the RO in
November 1992 noted the increase in his PTSD symptoms
including a significant exacerbation of his nightmares,
flashbacks, anger and emotional withdrawal. However, it was
further noted that due to these symptoms as well as his
physical condition, he was considered to have no potential
for vocational rehabilitation.
Although the veteran was admitted to a PTSD program at a VA
hospital from April to July 1994, during which his treatment
consisted of attendance at a number of activities related to
PTSD recovery and a Global Assessment of Functioning (GAF)
score of 40, see American Psychiatric Association: Diagnostic
and Statistical Manual of Mental Disorders, Fourth Edition,
Washington, D.C., American Psychiatric Association, 1994, was
noted at hospital discharge, subsequent VA outpatient
counseling reports starting in April 1995 document
significant improvement in the veteran's condition. In April
1995, the veteran stated that he was doing "very well" and
that he was pleased with his current medication. He reported
that his life was somewhat less chaotic but he continued to
have problems with his family and his girlfriend's family.
He also reported that he had returned to work. In June 1995,
he reported that he was generally doing well with some
resolution of his family stressors. He was noted to be
relatively asymptomatic although he described brief episodes
of depression usually related to external events. It was
further noted that his sleep, appetite and anger control was
"ok." In December 1995, it was noted that the veteran
reported he had stopped taking his medications in July 1995
because he was doing so well. However, he subsequently
experienced a "full exacerbation" with insomnia,
nightmares, irritability and depression. It was further
noted that he was married in July 1995 and that he stated his
life had been a rollercoaster since because he had stopped
his medications. There is no additional evidence during this
time period to establish the presence of totally
incapacitating psychoneurotic symptoms, that the veteran was
virtually isolated in his community, or that he was
demonstrably unable to obtain employment due solely to his
PTSD.
A VA hospitalization report covering the period from December
25, 1995 to January 2, 1996, noted that the veteran was
admitted on a voluntary basis apparently due to marital
problems. It was noted that he had been in an argument with
his wife and felt like hurting her, but denied acting on this
feeling. On mental status examination, the veteran did not
appear to be in any acute distress, he was cooperative and
his speech was normal in rate and was goal directed. His
mood was dysphoric and his affect was restricted. He denied
any homicidal or suicidal ideation and he denied psychotic
symptoms. He denied manic behavior, hyperactivity, and there
was no looseness of associations. He was alert and oriented
and his concentration and attention were intact. It was
noted that his mood improved during hospitalization and he
was subsequently discharged. On hospital discharge, the
veteran's GAF score was noted to be 55, representative of
moderate symptoms.
In April 1997, a VA psychiatric examination and Social Work
Survey were conducted. Although the examiner indicated that
the veteran's GAF score was 45 and representative of serious
impairment in social and occupational functioning, on mental
status examination the veteran, while angry, initially was
cooperative but complained that he "keeps going over the
same material repeatedly." He was found to be oriented to
time, place and person and became somewhat uncooperative
during the memory exercise. The examiner noted that,
overall, the veteran was reluctantly cooperative and
minimally informative. It was further noted that there was
no evidence of a thinking disorder. On the Social Work
Survey the veteran was considered to be vague with respect to
his answers concerning his employment history and noted that
his current employment was temporary and part-time in nature,
involving 20 to 30 hours per week as a security officer. The
veteran noted that his physical conditions including knees,
back, hands and elbows in addition to his PTSD symptoms
limited his employment opportunities. The examiner indicated
that he agreed with these limitations and that the position
of security officer was a job the veteran could do on a
limited basis. It was further concluded that it was unlikely
that the veteran was employable. Again, the evidence of
record during this time period while reflective of severe
PTSD symptomatology, does not demonstrate symptoms of such
severity to meet the criteria for a 100 percent schedular
evaluation. The veteran has consistently been found to be
oriented, and while he has been shown to be depressed with
restricted affect, he has shown no evidence of delusions or
hallucinations, no indication of homicidal or suicidal
ideation and his concentration and attention were intact.
Furthermore, while the VA examiner stated that the veteran
was "unemployable," it cannot be ignored that the veteran
was in fact employed on at least a half-time basis.
Moreover, the veteran has psychiatric and physical
impairments which together combine to limit his employment
opportunities.
The veteran was next seen by VA on an outpatient basis in
August 1998. It was noted that he had not been seen by VA
for over a year. The veteran indicated that he sought
counseling regarding his relationship with his girlfriend and
that he had experienced an increase in his Vietnam related
dreams. He further noted that he was working as a "courtesy
officer" in the development where he lived.
In June, August and September 1999, the veteran underwent VA
psychiatric and psychological examination and testing. The
findings documented on examination in June 1999 are
consistent with those noted on the August and September
reports and as such are summarized as follows: The veteran
reported that he had not been in any regular mental health
treatment for several years and was last seen on a "drop-
in" basis in August 1998. He noted that he refused all
medications and was not involved in therapy "because I go
over the same stuff over and over again. Nothing ever
changes." He reported nightmares and that after a nightmare
he was anxious. He indicated that he had regular intrusive
thoughts of Vietnam and that he preferred to be alone. He
noted periodic crying spells and denied any suicidal
ideation. His appetite was reported to be adequate although
it increased when he was anxious and he indicated that his
mind wondered although he could read a newspaper or a
magazine. On mental status examination the veteran was
neatly groomed, alert and oriented. His speech was logical
without loose associations and his affect was irritable and
moderately constricted. His mood was irritable and angry.
He denied any current suicidal or homicidal ideation,
hallucinations or delusions. Recent and remote memory were
intact for current events and past history although he put
forth limited effort toward recalling any details that were
not immediately apparent to him. The assessment was that the
veteran has moderately severe PTSD symptoms. It was further
noted that he had a major depressive disorder secondary to
the PTSD. His primary symptoms include difficulty
concentrating, low energy, difficulty sleeping, war-related
nightmares, depressed mood, anger and irritability. The
examiner further commented that the veteran had been able to
remain employed 15 hours a week for approximately 18 months
and that this probably was the highest level of employment
possible for him given that he is very easily irritated and
would not be able to sustain a continuous effort beyond what
he is already doing at a job that has limited contact with
the public and requires virtually no physical exertion.
Upon completion of the examinations, the examiners concurred
in the diagnoses of PTSD and a major depressive disorder
secondary to PTSD and indicated that the veteran's GAF score
was 50. The examination results were synthesized in a
September 1999 report which indicated that the PTSD and the
major depressive disorder limit the veteran's ability to work
and that he could not function in the work situation beyond
the 15 hours he now puts in at a security job position at
night. It was noted that he has limited contact with the
public and almost no direct supervisory oversight. Although
he has been able to manage this work, this was considered to
be almost a sheltered workshop type of position and if the
circumstances could not be maintained, he would have
difficulty maintaining other kinds of employment. It was
further noted that the veteran's condition most closely
matches the 70 percent level of occupational and social
impairment. He does not have the total occupational
impairment, persistent delusions and hallucinations, grossly
inappropriate behavior and inability to perform tasks of
daily living associated with 100 percent disability.
Likewise, he has in the opinion of the evaluators, more
occupational impairment than the decrease in productivity and
other descriptors for the 50 percent level.
The evidence of record, as summarized above, fails to
establish the presence of PTSD symptomatology such as to
warrant a schedular 100 percent rating under the pre-November
1996 or post-November 1996 criteria. The Board has carefully
reviewed the voluminous reports associated with this claim
and has analyzed the findings documented within the medical
records, the testimony at the hearing in November 1992, and
the veteran's arguments and contentions throughout the appeal
period. In this regard the constellation of PTSD
symptomatology identified within the record has been weighed
in light of the applicable rating criteria both prior to and
after the regulatory change in November 1996; however, the
upon completion of this review, the Board concludes that
entitlement to a 100 percent schedular rating for PTSD is not
warranted in this case.
While the record documents that the veteran's service-
connected psychiatric impairment is severe in nature, and
reflects the periodic exacerbations and remissions which
generally characterize this disability, a longitudinal review
of the evidence does not reflect evidence of totally
incapacitating psychoneurotic symptoms, virtual isolation in
the community or that the veteran is demonstrably
unemployable due solely to his PTSD. Furthermore, the record
fails to document total occupational and social impairment
due to gross impairment in thought processes or
communication, persistent delusions or hallucinations,
grossly inappropriate behavior, persistent danger of hurting
self or others, disorientation to time or place, memory loss
for names of close relatives, own occupation or own name.
Indeed, the veteran has consistently been found to be
oriented to time, place and person. He has been shown to be
capable of logical, goal directed thought and speech, with no
evidence of delusions or hallucinations and his recent and
remote memory have essentially been shown to be intact
throughout this time period. The Board acknowledges that the
veteran's PTSD symptomatology is severe in nature, but it has
not been shown to be productive of the level of impairment
representative of total incapacity due to a loss of contact
with reality within the applicable rating criteria noted
above. He has not been shown to be virtually isolated in his
community and in fact, he has consistently maintained
relationships with "girlfriends," has lived with his
daughter, her husband and their children and maintained
various levels of employment over the years.
Furthermore, although it may be argued that the veteran has
essentially been unemployable during the appeal period, the
record documents that the veteran's employment status has
consistently been characterized in terms of the combination
of disabilities, both psychiatric and physical and there is
no evidence which indicates that the veteran is or has been
unemployable due solely to his service-connected PTSD.
Moreover, while the veteran has argued that the provisions of
38 C.F.R. § 4.16(c) are for consideration in this case, this
regulation was eliminated by the November 7, 1996 change
noted above, and although potentially applicable to the time
period prior to November 7, 1996, the veteran has
subsequently been granted service connection for a left knee
disability at a compensable level, effective from June 22,
1991, thereby rendering consideration of the provision moot.
The veteran's testimony and statements in support of his
claim have been carefully considered by the Board; however,
these contentions are found to be outweighed by the objective
medical evidence of record which fails to identify the
presence of the requisite symptomatology, either before or
after November 7, 1996, to meet the applicable criteria for a
100 percent rating. Accordingly, entitlement to an increased
disability evaluation for PTSD is not warranted.
ORDER
Service connection for post traumatic arthritis of the right
knee is granted.
A disability evaluation in excess of 70 percent for PTSD is
denied.
REMAND
The Board notes that the veteran's original appeal included a
claim for service connection for a left knee disability.
However, in September 1997, the RO granted service connection
for post traumatic osteoarthritis of the left knee on the
basis of aggravation and assigned a noncompensable disability
evaluation effective from June 21, 1991. In January 1998,
the veteran submitted a notice of disagreement with the
noncompensable rating assigned for the left knee disability.
In March 1998, the Board determined that entitlement to
service connection for a left knee disorder was warranted
based upon the veteran's service from July 1963 to July 1966,
based on a finding that the veteran, in November 1991, had
filed a reopened claim for service connection for such
disorder by the submission of new and material evidence.
(Service connection had previously been denied in a rating
decision of December 1985, which was final in the absence of
a timely filed appeal.)
In January 2000, the RO increased the disability rating for
the left knee disorder to the 30 percent level effective from
June 22, 1991, the day following discharge from his most
recent period of service. In this regard, pursuant to AB v.
Brown, 6 Vet. App. 35, (1993), the veteran is presumed to be
seeking the maximum benefit allowed by law, consequently, the
claim remains in controversy where less than the maximum
benefit is awarded. In this case, higher evaluations are
available pursuant to alternate Diagnostic Codes including a
possible separate rating for arthritis.
The Board next notes that the veteran, through his
representative has argued that the issue of entitlement to a
total disability evaluation for compensation based upon
individual unemployability (TDIU) is properly before the
Board on appeal. However, careful review of the record
reveals that appellate jurisdiction over this issue has not
been established. The record reflects that in October 1992,
the RO increased the disability rating for the veteran's PTSD
to 70 percent. In November 1992, he offered testimony at a
hearing before a Hearing Officer at the RO contending that a
"total" evaluation was warranted for his PTSD. He also
submitted notice of disagreement with the 70 percent rating
to the Hearing Officer in which indicated he could not work
with his PTSD. No additional action was taken with respect
to a claim for a TDIU by the veteran or VA until May 1993,
when the veteran specifically raised a claim for entitlement
to total disability evaluation based upon individual
unemployability. The issue was not addressed in statement of
the case issued in May 1993 and in July 1993, the veteran
again raised the issue. In correspondence dated in August
1993, the RO inaccurately informed the veteran that a
separate determination by VA for total disability was not
required as this issue was considered in order to decide the
merits of the claim for an increased rating for PTSD. This
statement was inaccurate because the adjudication of a claim
for TDIU involves consideration of additional regulations
including 38 C.F.R. § 4.16 which is separate and apart from
the rating criteria under Diagnostic Code 9411. No
additional action was taken by VA or the veteran with respect
to the TDIU issue until September 1995 when the Board in the
remand of the same date directed the RO to consider the
veteran's claim pursuant to the then applicable 38 C.F.R.
§ 4.16(c) as well as potentially under § 4.16(a) depending
upon whether service connection for an additional disability
was established with a compensable rating as a result of the
directed remand action.
The RO first adjudicated the veteran's claim for a TDIU in
September 1997. The veteran was notified of this decision in
September 1997; however, no appeal was filed within one year
of this notification. The RO again adjudicated the claim for
a TDIU in January 2000 and included this issue in the
supplemental statement of the case of the same date.
Unfortunately, this issue should not have been included in
the supplemental statement of the case as there had been no
notice of disagreement with either the September 1997
decision or the January 2000 decision. In December 2000, the
veteran, through his representative submitted what was
characterized as argument in support of the claim before the
Board. In view of the above circumstances, the Board finds
that the December 2000 submission by the veteran is a notice
of disagreement with the January 2000 rating action.
In view of the above and because the veteran and his
representative have not been provided with a statement of the
case addressing either of the issue of entitlement to an
increased rating beyond 30 percent for post traumatic
osteoarthritis of the left knee or entitlement to a total
disability evaluation for compensation based upon individual
unemployability, and provided the opportunity to submit a
substantive appeal such to perfect jurisdiction of these
issues for Board consideration, these matters must be
returned to the RO for prompt issuance of a statement of the
case. See also Manlincon v. West, 12 Vet. App. 238 (1999).
This action is deemed to be consistent with the recently
enacted Veterans Claims Assistance Act of 2000 with respect
to the requirement to provide the veteran with adequate
notice regarding the status of his claims and what is
necessary in order to substantiate entitlement to the
benefits sought.
Accordingly, these matters are hereby REMANDED to the RO for
the following action:
1. The RO should issue to the veteran and
his representative a statement of the
case addressing the issue of
entitlement to an increased disability
evaluation for post traumatic
osteoarthritis of the left knee as
well as the issue of entitlement to a
total disability evaluation for
compensation based upon individual
unemployability, along with a VA Form
9. The veteran and his representative
are hereby reminded that the Board can
only obtain jurisdiction over these
issues if an appeal is perfected by
the timely filing of a substantive
appeal.
2. Upon completion of the above, the RO
must review the claims folder and
ensure that all notification and
development required by the Veterans
Claims Assistance Act of 2000 is
completed. In particular, the RO
should ensure that the new
notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107) are
fully satisfied.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
N. R. ROBIN
Member, Board of Veterans' Appeals